HKSAR v. Li on Wo

HCMA000301/2004

HCMA301/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.301 OF 2004

(ON APPEAL FROM FLCC 3014 OF 2003)

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 21 April 2004

Date of Judgment: 21 April 2004

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J U D G M E N T

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1.The appellant, Li On Wo, was convicted before a magistrate of one charge of criminal damage (Charge 1) and four charges of assaulting a police officer in the execution of duty (Charges 2 to 5). She was sentenced to imprisonment of 28 days in total. She is appealing against the conviction.

The prosecution case

2.On 1 November 2003, the appellant was detained in the temporary holding area inside the report room of Sheung Shui Police Station. She was due to be bailed out. The appellant was distressed and the CCTV captured that she was kneeling on the floor with her back to the cell and there were ripped up paper and a shoe on the floor. Station Sergeant Li Yuk Ming (PW1) wished to supervise the explanation and signing of the bail form himself. PW1 went into the cell with WPC3574 (PW2).

3.PW1 said the appellant tried to kick them. PW1 then came out and instructed other officers to take the appellant to Interview Room 5 for processing bail. This room was outside the range of the video camera. Inside Interview Room 5, PW1 handed the bail form to the appellant. The appellant became violent and tore up the bail form. She scratched PW1 and the other officers, and the officers had to restrain the appellant by her arms and legs and to move her back to the cell. In the process, PW1 and three officers suffered abrasions and scratches.

The defence case

4.The appellant gave evidence and said she was set up by the police for no apparent reason and she was beaten up by them. She was assaulted by PW1 and thrown against a stool. She admitted struggling with the officers but it was in act of self-defence to get them off her.

Reasons of the magistrate

5.The magistrate found the four officers to be reliable, truthful and consistent. He found support of their evidence in the photographs showing their injuries which were consistent with result of violent struggle. He also found some support in the video showing the initial stage of the event.

6.The magistrate rejected the appellant's evidence as untruthful with appearance of elements of fantasy and concluded she was incapable of belief. The magistrate also took into account that at the relevant time the police was trying to effect her release from custody instead of detaining her.

7.The magistrate found that the police officers were acting in the due execution of duty when the appellant tore up the bail form and became violent and the officer had to return her to the cell.

Grounds of appeal

8.The appellant filed the general grounds that the conviction was against the weight of evidence and there was no or no sufficient evidence to found the conviction.

9.At the appeal she tried to repeat the evidence but they were matters already considered by the magistrate. There were three matters which she also brought out. She said she never touched the torn bail form and she requested the court to order forensic examination of the paper. Secondly, at the time of the incident there was a woman police constable present and there was no cause for her to be handled by the male officers. Thirdly, the magistrate considered the evidence to have elements of fantasy but she said she had been sent to Siu Lam Psychiatric Centre for 14 days and she was certified to be normal by the psychiatrist.

Consideration on appeal

10.The procedure on appeal is not rehearing on the matter in receiving the same evidence or to order forensic examination. It is to see whether the conclusion reached by the magistrate is supported by evidence. No doubt there was a woman constable present but the magistrate had already concluded the extent of the injuries received by the four male officers and said that the officers were put in a very difficult situation presented by the appellant. The steps taken by the officers were necessary and reasonable.

11.As to the rejection of the evidence of the appellant that she was set up and assaulted by the officers first, the magistrate was entitled to have considered the credibility and the inherent probabilities of the evidence of the prosecution witnesses and the appellant herself. He was entitled to come to the conclusion on the evidence and to find the facts as he did, and there is no occasion to disturb such finding of facts in this case.

12.On the evidence accepted by the magistrate, there is ample evidence to convict the appellant on the charges. Hence the appeal is dismissed.

Representation:

Ms Peggy Lo, GC of the Department of Justice, for the Respondent

The Appellant, in person